Administration of a non-resident deceased estate with assets in South Africa

Administration of a non-resident deceased estate with assets in South Africa
19 May 2021

As investors typically invest in diverse portfolios spanning more than one country, or state, it is important to be cognisant of implications in the legal administration of Deceased Estates should the investor die.

Foreign estates

Assets in South Africa need to be managed by an executor legally authorised by the Master of the High Court. This authority can be issued by a letter of appointment from the Master, or in the case where a letter of appointment has been issued by another country, it can be signed and sealed as authorisation for the executor to deal with the assets in South Africa.

Jurisdiction of foreign estates

Jurisdiction is not automatically granted to the Master in the country where the largest portion of the estate is located. According to the Administration of Estates Act 66 of 1965 (the Act), any Master to whom application is made to grant letters of executorship or to sign and seal any such letters already granted in respect of the estate concerned, has jurisdiction in a foreign estate. To avoid concerns of duplicate registration of executorship in foreign estates, applicants for letters of executorship in a foreign estate or for the signing and sealing of letters of appointment issued in another State, must state in a declaration under oath with the Master that neither of these have already been granted in another State.

Proclaimed States

Proclaimed States are foreign States in which it is not necessary for letters of executorship to be issued – it is acceptable that letters of appointment already issued in that State simply be signed and sealed by the Master.

These are the Proclaimed States:

  • Botswana
  • British Columbia, Canada
  • Lesotho
  • British Guiana
  • Channel Islands
  • Eire
  • Kenya
  • Namibia
  • New South Wales, Australia
  • New Zealand
  • Swaziland
  • Tanzania
  • United Kingdom and Ireland
  • Victoria, Australia
  • Zambia
  • Zimbabwe

There are a number of Types of Appointments in Foreign Estates.

Where the only assets in South Africa consist of movables, there are simpler procedures for the management of these estates, i.e.:

  • Ordinary letters of executorship issued in terms of the Act
    • Letters of executorship, only movable assets and the deceased was not resident in a proclaimed state or where no letters of appointment were issued in a proclaimed State
    • Signing and sealing of foreign letters of appointment issued in a proclaimed State
    • The only assets in the estate are shares
  • Ordinary section 18(3) appointments
  • Appointments in estates of Mozambican nationals governed by the provisions of the Mozambican Labour Agreement of 1964

A foreign executor may apply for the signing and sealing of his/her appointment issued in a proclaimed State or can choose to apply for appointment by lodging the documents required.

Documents executed outside of South Africa, for use inside South Africa must be authenticated.

Article sources from Benaters.

See also:

(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)

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